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From International Law to Imperial Constitutions: The Problem of Quasi-Sovereignty, 1870–1900

Published online by Cambridge University Press:  18 August 2010

Lauren Benton
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The roots of the international legal order have often been traced to intertwining scholarly and political traditions dating back to the early seventeenth century, in particular to early writings in international law and the rise of the nation-state in Europe. Recent scholarship has attacked this narrative from many angles. One approach has been to reexamine early modern European politics and discourse, in particular questioning whether, for example, the publication of Grotius's writings, or the Peace of Westphalia, functioned as a foundational moment in the history of the interstate order. A second, complementary approach has been to broaden the history of global order to encompass inter-imperial politics, including the legal relations of imperial powers and indigenous subjects. The two projects have been occasionally combined in efforts to trace the impact of imperial politics on trends in international law.

Type
Part III. Governing Space in International Law
Information
Law and History Review , Volume 26 , Issue 3: Law, War, and History: A Special Issue , Fall 2008 , pp. 595 - 619
Copyright
Copyright © the Board of Trustees of the University of Illinois 2008

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References

1. There is a growing literature on the misreadings of Westphalia. See, for example, Beaulac, Stephane, The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Brill, 2004)Google Scholar. The best work on reinterpreting Grotius against a common reading by international relations theorists is Keene, Edward, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar.

2. A classic study along these lines is Alexandrowicz, C. H., An Introduction to the History of the Law of Nations in the East Indies (16th, 17th, and 18th Centuries) (Oxford: Clarendon Press, 1967)Google Scholar. See also Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge: Cambridge University Press, 2002)Google Scholar.

3. Keene, in Beyond the Anarchical Society, favors this approach without developing the legal politics of empire in detail. Several historians have made a more concerted effort to link the politics of trade in the East Indies with Grotius's writings. See, for example,Borschberg, Peter, “The Seizure of the Sta. Catarina Revisited: The Portuguese Empire in Asia, VOC Politics, and the Origins of the Dutch-Johor Alliance (c. 1602-1616),” Journal of Southeast Asian Studies 33 (2002): 31–62CrossRefGoogle Scholar; and, especially, Ittersum, Martine Julia van, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies (1595-1615) (Leiden: Brill, 2006)CrossRefGoogle Scholar.

4. Daniel Hulsebosch coins the term “imperial agents” and argues persuasively that in British North America these actors were key in elaborating the discourse on constitutionalism, rights, and sovereignty.Hulsebosch, Daniel, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2006)Google Scholar. The study of imperial agents in the nineteenth century contributes to a trend, described and advocated by Duncan Bell, toward tracing British imperial discourse outside a small circle of unrepresentative canonical figures; seeBell, Duncan, “Empire and International Relations in Victorian Political Thought,” The Historical Journal 49 (2006): 281–98CrossRefGoogle Scholar.

5. I am adapting here Hulsebosch's argument about the influence of imperial legal politics on the emergence of a new kind of jurisprudence in eighteenth-century New York (ibid.). For a discussion of global parallels to the scenario described in Hulsebosch, see Benton, Lauren, “Constitutions and Empires,” Law & Social Inquiry 31 (2006): 177–98.CrossRefGoogle Scholar

6. Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004), 81.Google Scholar

7. These examples are all provided by Westlake, in The Collected Papers of John Westlake, ed. Oppenheim, L. (Cambridge: Cambridge University Press, 1914), 88-89, 182, 198.Google Scholar

8. See, for example, Westlake's statement on international law by analogy (The Collected Papers of John Westlake, 232).

9. To a certain extent, this position also emerged out of the writings of imperial administrators. We see it foreshadowed in early nineteenth-century writings on the “subsidiary alliance” system in India. Wellesley, for example, noted in 1804 that British military power sustained by subsidiary forces in Indian states and supplemented by British political pressures enabled “the British power to control the causes of … internal warfare” and to guarantee to each state “the unmolested exercise of its separate authority within the limits of its established dominion, under the general protection of the British power.” “Letter to the Secret Committee of the Court of Directors,” extracted inChar, S. V. Desika, ed., The Constitutional History of India, 1757-1947 (Oxford and Delhi: Oxford University Press, 1983), 191–92Google Scholar. This view generalized the terms of treaties between the East India Company and the larger Indian states. The treaties took the form of agreements between independent states and emphasized the commitment of both sides to “mutual defence and protection against all enemies” while also committing the Indian ruler, “in the event of any differences arising,” to accept “whatever adjustment” was decided upon by the “Company's Government” after it weighed “matters in the scale of truth and justice.” (“Treaty of general defensive alliance concluded by the Company with the Nizam of Hyderabad, 12 October 1800” in Char, , ed., The Constitutional History of India, 189–92.Google Scholar) For similar treaties from this period, seeAitchison, C. U., ed., A Collection of Treaties, Engagements, and Sunnuds Relating to India and Neighboring Countries (Calcutta: Government Printing, 1865), vol. 9Google Scholar.

10. Anghie, notes that the problem “was never satisfactorily denied or resolved.” Anghie, , Imperialism, Sovereignty and the Making of International Law, 81.Google Scholar

11. After all, whenever necessary, the imperial power could enact legislation-as it had in the case of control of the slave trade-that would apply across the empire. The Collected Papers of John Westlake, 220.

12. Ibid., 223, 232.

13. The British execution of the brother of the ruler of Manipur in 1891 for leading the revolt that placed his brother in power was also regarded by Westlake and others as confirmation not just rulers but also the inhabitants of Indian princely states were British subjects. See ibid., 222-23; and William Lee-Warner, The Protected Princes of India (London: MacMillan and Co., 1894).

14. It is more common for historians to trace the connections between arrangements of quasi-sovereignty in India and the development of “indirect rule,” a term that emphasized delegated authority rather than divided sovereignty. On the Indian residency system and indirect rule, seeFisher, Michael, Indirect Rule in India: Residents and the Residency System, 1764-1858 (Oxford: Oxford University Press, 1993)Google Scholar.

15. Nasser Hussain has noted that imperial law made more frequent and systematic use of mechanisms for the suspension of law.Hussain, Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003)CrossRefGoogle Scholar.

16. I am adapting a term coined byNeuman, Gerald, “Surveying Law and Borders: Anomalous Zones,” Stanford Law Review 48 (1996): 1197–234CrossRefGoogle Scholar.

17. For analysis of a discrete controversy about the viability of the imperial constitution, see Kostal, R. W., A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford and New York: Oxford University Press, 2005).Google Scholar

18. For an overview of the changing composition and goals of the Foreign Department, see Hogben, W. Murray, “The Foreign and Political Department of India, 1876-1919: A Study of Political Careers and Attitudes” (Ph.D. diss., University of Toronto, 1973), 1–28Google Scholar. On the Foreign Department at the time of the Baroda crisis, seeCopland, I. F. S., “The Baroda Crisis of 1873-77: A Study in Government Rivalry,” Modern Asian Studies 2 (1968): 97–123CrossRefGoogle Scholar.

19. An estimate produced by a retired deputy surveyor-general in 1833 calculated that the area of native states with treaties of alliance with the British covered a little over 41 percent of the territory of the Raj (Ramusack, Barbara N., The Indian Princes and Their States [Cambridge: Cambridge University Press, 2004], 52–53Google Scholar). A report for the Government of India in 1875 estimated that the states covered over 590,000 square miles with nearly 56 million inhabitants. “Indian Native States Approximate Area, Population, Revenue, and Military Force,” India Office Records, The British Library (hereafter IOR and BL) L/PS/18/D. In 1909, the Imperial Gazetteer of India counted 693 states (Ramusack, , The Indian Princes and Their States, 2Google Scholar). By 1929, in part as a result of the consolidation of smaller states, a process that was approved by the larger states in order to secure their political influence and restrict membership in the Chamber of Princes, the estimated number was 562. (Directorate of the Chamber's Special Organisation, The British Crown and the Indian States: An Outline Sketch Drawn up on Behalf of the Standing Committee of the Chamber of Princes [London: P. S. King and Son, Ltd., 1929]Google Scholar).

20. Colonial officials did not always agree that they were engaging in debates about constitutional law. See Lee-Warner, , The Protected Princes of India, 378–79.Google Scholar

21. Ramusack correctly notes the “muddled tedium” of most histories of the princely states ( The Indian Princes and Their States, 2). She summarizes efforts of colonial officials to produce what she calls “bureaucratic codificiations” of relations with princely states (92-98). See alsoFisher, , Indirect Rule in India. Fisher's study ends before the period covered here but shows that British thinking about the doctrine of “paramountcy” was well developed before the mid-nineteenth century. On the careers of officials of the Foreign Office, seeGoogle ScholarHogben, , The Foreign and Political Department of India. For an interesting legal case involving an Indian prince that reveals a certain reverence in popular culture in Bengal for petty princes in the early twentieth century, seeGoogle ScholarChatterjee, Partha, A Princely Imposter? The Strange and Universal History of the Kumar of Bhawal (Princeton: Princeton University Press, 2002)Google Scholar.

22. The legal politics of Indian princely states is part of a broader history of the politics of legal pluralism in India. The jurisdictional politics and contingencies of this history are outlined in Benton, , Law and Colonial Cultures, chap. 4.Google Scholar

23. Sir Tupper, Charles Lewis, Our Indian Protectorate: An Introduction to the Study of the Relations between the British Government and Its Indian Feudatories (London: Longmans, Green, and Co., 1893)Google Scholar; andSir Tupper, Charles Lewis, Indian Political Practice: A Collection of the Decisions of the Government of India in Political Cases, 4 vols. (1895; Delhi: B. R. Pub. Corp. 1974)Google Scholar.

24. Tupper's writings were published about the same time as another influential book on Indian “protected princes” by William Lee-Warner, also a prominent member of the Indian Civil Service. Lee-Warner took issue with Tupper's characterization of the legal and political order as “feudal” but agreed on the inapplicability of international law and, at the same time, the recognition of elements of “sovereignty” by native states. Lee-Warner, , The Protected Princes of India, 376–82.Google Scholar

25. On the “Indian past,” see Tupper, , Our Indian Protectorate, 9, 132.Google Scholar

26. Ibid., 131.

27. Ibid., 131, 167.

28. Ibid., 143.

29. Ibid., 151.

30. Quoted in Cocks, R. C. J., Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988), 86.CrossRefGoogle Scholar

31. This is Cocks's useful summation of Maine's central concern in Ancient Law. Ibid., 108. In Ancient Law (1861), Maine identified three processes within law that could produce change in order that the law would conform more closely to social conditions. These “instrumentalities” were legal fictions, equity, and legislation. Maine never succeeded in developing a coherent theory about how such mechanisms worked. He did become increasingly convinced that careful jurists could help to guide effective change, a belief that informed his strong support for codification later in his career. On the central place of the idea of legal evolution within British international law of the nineteenth century, seeSylvest, Casper, “The Foundations of Victorian International Law,” in Victorian Visions of Global Order, ed. Bell, Duncan (Cambridge: Cambridge University Press, 2007), 47–66CrossRefGoogle Scholar. On Maine's influence on imperial thinking about indirect rule, seeMantena, Karuna, “‘Law and Tradition’: Henry Maine and the Theoretical Origins of Indirect Rule,” in Law and History, ed. Lewis, Andrew and Lobban, Michael (Oxford: Oxford University Press, 2005), 159-88.Google Scholar

32. Gujarat and Kathiawar had been divided between the Peshwa and the Gaekwar. Part of the region under the control of the Peshwa became British territory under the 1807-8 settlement agreement. In 1862, a proposal to cede this territory back to the Thákur of Bhaunagar was one of the issues that prompted the question of whether Kathiawar should be considered foreign or British territory. For more on Kathiawar, seeMcLeod, John, Sovereignty, Power, Control: Politics in the States of Western India, 1916-1947 (Leiden: Brill, 1999), 15–25Google Scholar.

33. They were citing Elphinstone's 1821 Report on the Territories Conquered from the Paishwa, reprinted in Selections from the Minutes and other Official Writings of the honourable Mountstuart Elphinstone, ed. G. W. Forrest (London: Richard Bendy and Son, 1844), 251-444. More broadly influential wasTod's, JamesAnnals and Antiquities of Rathasthan (1823; Delhi: Asian Educational Services, 2000)Google Scholar.

34. See Tupper‘s analysis of the Kathiawar issue in Tupper, , Our Indian ProtectorateGoogle Scholar; McLeod, John, Sovereignty, Power, Control, 15–25Google Scholar; and Copland, Ian, The British Raj and the Indian Princes: Paramountcy in Western India, 1857-1930 (London: Sangam Books Limited, 1982), 98–122Google Scholar.

35. “Kattywar States; Sovereignty,” Minutes by the Hon. Sir H. S. Maine, 22 March 1864, IOR V/27/100/3, 35-38.

36. Tupper, , Indian Political Practice, 1:220.Google Scholar

37. “Kattywar States; Sovereignty,” IOR V/27/100/3, 35-38.

38. Ibid. This understanding was consistent with a parallel move by the colonial state to claim a prerogative to make the rules for the plural legal order and, in the process, set itself up as the dominant legal authority. SeeBenton, , Law and Colonial Cultures, chap. 4Google Scholar.

39. “Kattywar States; Sovereignty,” IOR V/27/100/3, 35-38.

40. The Baroda case was routinely cited as a precedent-setting case that established “the principle that incorrigible misrule is a disqualification for sovereign power” (Tupper, , Indian Political Practice, 1:49Google Scholar). The case was also said to affirm that rulers of Indian states owed allegiance to the Queen and the relation of the British monarch to the ruler was one “of sovereign to subject” (The Collected Papers of John Westlake, 221).

41. Copland sees the case mainly as the byproduct of the political rivalry of the Bombay government and the Viceroy‘s Council in Calcutta. Copland, “The Baroda Crisis of 1873-77.”

42. Phayre cuts a figure much like that of Captain Bligh in Greg Dening‘s telling: Bligh was not excessively harsh, but he was very bad at performing authority in a way that inspired loyalty in interlocutors or subordinates.Dening, Greg, Mr. Bligh‘s Bad Language (Cambridge: Cambridge University Press, 2002)Google Scholar.

43. This is Ian Copland‘s view in the most careful and comprehensive accounting of the crisis. Copland, “The Baroda Crisis of 1873-77.”

44. IOR P/481, f. 122.

45. Quoted in Tupper, , Indian Political Practice, 3:17–19.Google Scholar

46. Phayre was warned not to encourage Baroda subjects to bring complaints before him and to avoid “any language calculated to cause irritation” to the Baroda ruler. IOR P/481, f. 82.

47. IOR P/752, Government of India Foreign Department Proceedings, September, 1873, Judicial, No. 9, p. 14.

48. IOR L/PS/20/MEMO31/24, “Note for the Bhaonagan Case” by E. Perry, 11 December 1875. Emphasis added.

49. BL Mss Eur F/126/88, f. 5. In its charge to the commission, the Government of India stated that, if proved, the charge would be tantamount to treason. This statement, Westlake later argued, established that the Government‘s rationale for what Westlake incorrectly called a “trial” was that the Gaekwar was a subject of the Queen and owed allegiance to the Crown. See The Collected Papers of John Westlake, 222.

50. BL Mss Eur F/126/88, f. 4. The native members of the Commission were also accused of a form of jury nullification, that is, of basing their opinions more on “political feeling than on consideration of the evidence.” IOR Mss Eur F/126/88, f. 9.

51. The Viceroy‘s Minute of April 29, 1875, IOR F/126/88.

52. IOR P/752, Government of India Foreign Department Proceedings, July 1875, Judicial, No. 14, 9-10.

53. Memorandum by Mr. Stephen upon the issues disposed of by Despatch (Judicial) No. 55, dated 23 December 1875, IOR L/PS/18/D118.

54. Tupper, , Indian Political Practice, 1:230–52Google Scholar; quotes at 1:230, 241.

55. Maine had noted in 1864 that the British government had no authority to “extend” British laws into native territory; they could only be “applied.”

56. In the same period, other legal policies were having a similar effect, most notably the Criminal Tribes Act of 1874, which created a legal category of exclusion for entire ethnic groups. See Yang, Anand, “Dangerous Castes and Tribes: The Criminal Tribes Act and the Mahahiga Doms of Northeast India,” in Crime and Criminality in British India, ed. Yang, Anand (Tucson: University of Arizona Press, 1985), 108–27.Google Scholar

57. On the British discourse on “wildness,” seeSkaria, Ajay, Hybrid Histories: Forests, Frontiers and Wildness in Western India (Oxford and New York: Oxford University Press, 1999)Google Scholar.

58. A good example is the Dangs, an area that lay along the border of Baroda and the British district of Khandesh, whose main inhabitants, the Bhils, leased the lands for for-to the British. In 1889, the Bombay government sought to declare the Dangs a part of British India. But the Government of India argued that the legal primitivism of the Bhils recommended instead the “personal rule of a British officer untrammeled by anything but executive orders from his own Government” (Tupper, , Indian Political Practice, 1:245Google Scholar). See Skaria, , Hybrid Histories, for a detailed history of British relations with the BhilsGoogle Scholar.

59. This legal territorial differentiation was occurring at the same time that various forces were giving rise to the political imaginary of a national territory. See Goswami, Manu, Producing India: From Colonial Economy to National Space (Chicago and London: University of Chicago Press), 2004.CrossRefGoogle Scholar

60. See Gong, Gerrit W., The Standard of “Civilization” in International Society (Oxford: Oxford University Press), 1984)Google Scholar; and Koskenniemi, Martii, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge: Cambridge University Press, 2004)Google Scholar.

61. The Collected Papers of John Westlake, 183.

62. The mfekane had propelled a diverse set of polities into this region, and Boer and Griqua incursions also threatened to displace agricultural and pastoral settlements along the region‘s shifting borders.

63. See Burman, Sandra, Chiefdom Politics and Alien Law: Basutoland under Cape Rule, 1871-1884 (London and Basingstoke: The MacMillan Press, 1981)CrossRefGoogle Scholar. The following account is based largely on Burman‘s narrative; see alsoBurman, S. B., ed., The Justice of the Queen‘s Government: The Cape Administration of Basutoland, 1871-1884 (Leiden and Cambridge: African Studies Centre, 1976)Google Scholar.

64. For example, in the explosion of raiding between Boers and Basuto after 1854, leaders of the Orange Free State routinely demanded restitution for Basuto cattle raids and the surrender of Basuto men accused of violent crimes for their trial by Orange Free State courts. The Basuto occasionally made some restitution for raids, but Moshoeshoe never gave in to the request for jurisdiction over border crimes. The Basuto leader eventually agreed to recognize a long-disputed boundary between the polities but refused the Boer demand that he accept a magistrate in Basuto territory to curb border infractions. Even in the War of the Guns that ended Cape sovereignty, the controversy over disarmament became a crisis only when the chiefs rejected the right of Cape-appointed magistrates to interfere in chiefs' actions to punish subjects who had refused orders not to give up their guns.Burman, , Chiefdom Politics and Alien Law.Google Scholar

65. Also as in India, these views were influential throughout the middle decades of the nineteenth century but were most clearly articulated in the 1890s. George Theal, an official in the Native Affairs Department at the Cape, edited three volumes of documents on Basuto-European relations for which he wrote lengthy introductions tracing Basuto history and analyzing Basuto primitive sovereignty. The similarities to Tupper‘s perspective and position are unmistakable.Sauer, J. W. and Theal, George, eds., Basutoland Records, 3 vols. (Capetown: W. A. Richard & Sons, 1883)Google Scholar.

66. Theal, , “Introduction,” in Sauer, and Theal, , eds., Basutoland Records, 3: xv.Google Scholar

67. Burman, , Chiefdom Politics and Alien Law, 165.Google Scholar

68. The word “outcome” requires qualification. Conflicts over jurisdiction and shared sovereignty continued into the twentieth century, though the term “quasi-sovereignty” fell out of use and tensions over sovereignty took on new forms in the context of Indian nationalism. In the 1920s, the Chamber of Princes, composed of representatives of the larger princely states, asserted that the sovereign rights of the states were inherent rights rather than dependent upon the paramount power (or any subsequent government) for their creation. SeePanikkar, K. M., The Indian Princes in Council: A Record of the Chancellorship of his Highness the Maharaja of Patiala,1926-1931 and 1933-36 (London: Oxford University Press, 1936)Google Scholar; and Copland, Ian, The Princes of India in the Endgame of Empire, 1917-1947 (Cambridge: Cambridge University Press, 2002)Google Scholar.

69. Sir Twiss, Travers, The Law of Nations Considered as Independent Political Communities: On the Rights and Duties of Nations in Time of Peace (1884; Littleton, Colo.: F. B. Rothman, 1985), 27Google Scholar. Twiss is cited approvingly by Tupper, , Our Indian Protectorate, 4Google Scholar. Marshall‘s phrase is from Cherokee Nation v. Georgia, 30 U.S. 1 (1831)Google Scholar.

70. This account summarizes a complex history of Indian law and policy. For an overview, see Prucha, Francis Paul, The Great Father: The United States Government and the American Indians, 2 vols. (Lincoln and London: University of Nebraska Press, 1984)Google Scholar; andWilkinson, Charles, American Indians, Time, and the Law (New Haven and London: Yale University Press, 1988)Google Scholar.

71. The phrase is from Wilkinson, , American Indians, Time, and the Law.Google Scholar On the federal rulings from Ex Parte Crow Dog, 109 U.S. 556 (1883)Google Scholar, to Talton v. Mayes, 163 U.S. 376 (1886)Google Scholar, and to the Major Crimes Act of 1885, seeHarring, Sidney, Crow Dog‘s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (Cambridge: Cambridge University Press, 1994)CrossRefGoogle Scholar.

72. The phrase is from Asher, Brad, Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853-1889 (Norman: University of Oklahoma Press, 1999), 195. Asher argues that Indian law beneath the federal level was “inherently unstable” (195). For a study showing the importance of state law in Indian legal history, seeGoogle ScholarRosen, Deborah, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880 (Lincoln and London: University of Nebraska Press, 2007)CrossRefGoogle Scholar.

73. See Lawson, Gary and Seidman, Guy, The Constitution of Empire: Territorial Expansion and American Legal History (New Haven and London: Yale University Press, 2004), Part IICrossRefGoogle Scholar; Burnett, Christina Duffy, “The Edges of Empire and the Limits of Sovereignty: American Guano Islands,” American Quarterly 57 (2005): 779–803CrossRefGoogle Scholar; and Benton, , “Constitutions and Empires.”Google Scholar

74. Downes v. Bidwell, 182 U.S. 244 (1901). Christina Burnett argues that the “epochal significance” of the Insular Cases was not that they created a category of attenuated sovereignty for territorial acquisitions outside the United States but that in so doing they provided for the possibility of de annexation.Burnett, Christina Duffy, “United States: American Expansion and Territorial Deannexation,” University of Chicago Law Review 72 (2005): 797–879Google Scholar.

75. Anghie, , Imperialism, Sovereignty and the Making of International Law, 37.Google Scholar

76. On this point, see also Burbank, Jane and Cooper, Fred, Empires and the Politics of Difference in World History (Princeton: Princeton University Press, forthcoming).Google Scholar